On 5 March 2024, the Paris Court of Appeal heard three cases through its dedicated chamber for duty of vigilance and ecological responsibility cases. It was the first time that the dedicated chamber came into action since it was set up on 15 January 2024. The special chamber had been set up to prevent “serious attacks on human rights and fundamental freedoms, health and the safety of people as well as the environment”.
Three Cases Heard in the Chamber
1. TotalEnergies
Litigation against TotalEnergies originates in January 2020, in which a coalition of organisations and local authorities requested the French courts to order TotalEnergies to comply with the Paris Agreement, which is in line with the duty of vigilance. A pre-trial judge of the Paris Judicial Court rejected the request, claiming it was inadmissible since it did not agree with this interpretation of the duty of vigilance law. The coalition appealed this ruling, and oral arguments were heard on 5 March 2024.
2. Electricité de France (EDF)
The case against EDF was filed in October 2020, by representatives of the indigenous Zapotec community in Mexico, assisted by two organisations. The lawsuit concerns the establishment of the Gunaa Sicarú wind park on Zapotec lands. The claimants alleged that the indigenous rights were violated and that no specific risks were identified in EDF’s risk map for the project. However, in November 2021, the Paris civil court dismissed the request on procedural grounds. After appeal, this case too was heard on 5 March 2024.
3. SUEZ
Four organisations filed a lawsuit against private water provider SUEZ. The case cites an incident from July 2019, when inhabitants of Osorno, Chile, were deprived of water for 10 days due to contamination. The water was contaminated following malfunctions at ESSAL, a SUEZ subsidiary, for which the company had received ample warning from inspectors. After SUEZ had received formal notice under the duty of vigilance law (Read more below), another incident occurred when 2,000 liters of oil leaked into the drinking water in Osorno, again caused by ESSAL (allegedly). In June 2023, the court dismissed the lawsuit, since it did not consider SUEZ a correct defendant. The judge in the Paris Judicial Tribunal held that SUEZ’ vigilance plan did not mention which company within the group’s corporate structure was responsible for the plan.
France’s Duty of Vigilance Law
The French laws on the duty of vigilance were enacted in 2017. The duty of vigilance law applies to French companies with more than 5,000 employees (including in subsidiaries) in France, or with more than 10,000 (including in subsidiaries) globally. Companies that fall within the scope of the duty of vigilance law are required to establish and implement an effective ‘vigilance plan’.
The vigilance plan must include measures for risk identification and prevention of violations of human rights, fundamental freedoms, serious bodily injury, environmental damage, and health risks resulting directly or indirectly from the company’s (and/or its subsidiaries’) operations. The obligation also extends to the operations of the company’s (and/or its subsidiaries’) suppliers and subcontractors that are part of the operations.
The company’s plan and accompanying report must be made publicly available. Companies that fail to meet their obligations under the duty of vigilance law are to receive a formal notice stating their non-compliance. If, within three months of receiving the formal notice, the company continues to fail to meet its obligations, any ‘person with interest’ can compel the company to comply through a court order. This may apply when the vigilance plan is not good enough or is altogether non-existent.
Under the original text of the duty of vigilance law, a civil fine of up to 10 million euros was included. However, the French Constitutional Council has deemed this to be unconstitutional.
The La Poste Duty of Vigilance Case and the Paris Court of Appeal Special Chamber
The special chamber had been established following a ruling on 5 December 2023, in which a Paris Court of first instance evaluated the effectiveness and efficiency of La Poste’s vigilance plan. The Paris Judicial Court issued an injunction against La Poste and required the company to improve its vigilance plan. With this ruling, the special chamber now has an insight into how the duty of vigilance is interpreted by the courts.
Some of these insights that can be drawn from the 5 December 2023 ruling include that ‘risk mapping’ must not be too general and must allow for prioritisation of issues. Certain factors must be taken into account when risk-mapping, including: “the sector and nature of the business, its location, the type of commercial relationship, and the legal framework underpinning it, the size, structure, or resources of subsidiaries or partners, as well as the material conditions under which the service is produced or carried out.” Moreover, the court ordered that La Poste has to set up a system that enables it to monitor its vigilance measures, extending also to the company’s subcontractors.
However, the court refused to go along with the petitioners' request to order specific measures to be included in La Poste’s duty of vigilance plan and highlighted that courts should not go as far as telling companies to engage in certain actions or measures, as this is the role of the directors and shareholders.
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